Summary of Case:
Petitioner, a summer employee at St. Mary's Lodge in Glacier National
Park, was injured in a car accident while driving to the Kalispell airport
with her roommate, who was leaving employment, and another employee. Petitioner
had been asked to drive to the airport in accordance with her employer's
policy and practice of taking departing employees to the airport or train
station. St. Mary's reported the accident to its workers' compensation
carrier, Hartford Accident & Indemnity Company, which accepted claims
on behalf of petitioner and the other employees in the car. Petitioner,
who never herself filed a workers' compensation claim or directed the
filing of a claim, seeks ruling she was not acting within
the course and scope of employment and is not covered by the Workers'
Compensation Act.

Held:
Although section 39-71-601(1), MCA, requires a claimant to file a workers'
compensation claim within 12 months of an injury, the section is a statute
of limitations and affirmative defense which must be asserted by the insurer.
Here, the insurer has accepted the claim and the only matter before the
Court is whether petitioner was injured within the course and scope of
employment. Section 39-71-407(3), MCA (1999), governs compensability of
injury incurred "while traveling." Petitioner's injury is covered under
both subsections of that provision, either of which would be sufficient.
Subsection (a) is met where St. Mary's furnished the transportation to
the airport and could require employees to drive other employees to the
airport or train station, making the travel an integral part or condition
of summer employment. Subsection (b) is met where petitioner, though initially
asked by her roommate to drive, was required to complete the task in accordance
with St. Mary's policies and procedures. The claim was properly accepted
by the insurer and the petition is denied.

Topics:

39-71-601(1). Although
section 39-71-601(1), MCA (1999), requires a claimant to file a WC claim
within 12 months of injury, the section is a statute of limitations
and affirmative defense which must be asserted by the insurer. Where
the injury occurred in the course and scope of employment, an injured
workers' decision not to file a claim does not take the injury outside
the workers' compensation system.

39-71-407(3). Under
section 39-71-407(3), MCA (1999), which governs compensability of injuries
occurring "while traveling," summer employee of lodge in Glacier
Park was injured within course and scope of employment where she was
riding in car taking her roommate, a co-employee leaving employment,
to the Kalispell airport. Injury covered under both subsections of 407(3):
(a) is met where the lodge furnished the transportation and could require
employees to drive other employees to departing transport; (b) is met
where petitioner, though initially asked by her roommate to drive, was
required to complete the task in accordance with employer's policies
and procedures. Petition seeking declaration of non-coverage denied
where insurer properly accepted claim filed by employer on petitioner's
behalf.

Claims: Limitations Period.
Although section 39-71-601(1), MCA (1999), requires a claimant to file
a WC claim within 12 months of injury, the section is a statute of limitations
and affirmative defense which must be asserted by the insurer. Where
the injury occurred in the course and scope of employment, an injured
workers' decision not to file a claim does not take the injury outside
the workers' compensation system.

Employment: Course and
Scope: Travel. Under section 39-71-407(3), MCA (1999), which governs
compensability of injuries occurring "while traveling," summer
employee of lodge in Glacier Park was injured within course and scope
of employment where she was riding in car taking her roommate, a co-employee
leaving employment, to the Kalispell airport. Injury covered under both
subsections of 407(3): (a) is met where the lodge furnished the transportation
and could require employees to drive other employees to departing transport;
(b) is met where petitioner, though initially asked by her roommate
to drive, was required to complete the task in accordance with employer's
policies and procedures. Petition seeking declaration of non-coverage
denied where insurer properly accepted claim filed by employer on petitioner's
behalf.

Limitations Periods: Claim
Filing: Generally. Although section 39-71-601(1), MCA (1999), requires
a claimant to file a WC claim within 12 months of injury, the section
is a statute of limitations and affirmative defense which must be asserted
by the insurer. Where the injury occurred in the course and scope of
employment, an injured workers' decision not to file a claim does not
take the injury outside the workers' compensation system.

¶1 The trial in this matter
was held on July 13, 2000, in Missoula, Montana. Petitioner, Heather Kelly
(petitioner), was present and represented by Mr. David W. Lauridsen. Hartford
Accident and Indemnity Company (Hartford), the workers' compensation insurance
carrier for St. Mary R. B., Incorporated (St. Mary's), was represented
by Mr. William O. Bronson. St. Mary's was represented by Mr. Dan L. Spoon.
A trial transcript has not been prepared.

¶2 Exhibits: Exhibits
1 through 4 were admitted without objection.

¶3 Witnesses and Depositions:
The parties submitted the depositions of Heather Kelly and Rocky Black
for the Court's consideration. Those same individuals, as well as Linda
Slavik, also testified at trial.

¶4 Issues: The issue,
as restated by the Court, is as follows:

Whether the Petitioner was
acting within the course and scope of her employment with St. Mary's
at the time of the automobile accident on September 1, 1999.

¶5 Having considered the pretrial
order, the testimony presented at trial, the demeanor and credibility
of the witnesses, the exhibits and depositions, and the arguments of the
parties, the Court makes the following:

FINDINGS
OF FACT

¶6 Petitioner is currently
twenty years old and a college student. She lives in Oregon.

¶7 During the summer of 1999,
petitioner was employed by St. Mary's as a seasonal worker at St. Mary's
Lodge in Glacier National Park. She worked as a housekeeper, making between
five and six dollars an hour. St. Mary's also provided lodging and meals,
charging employees $7.95 per day for room and board, which is less than
the true value of lodging and meals.

¶8 Petitioner's roommate during
the summer of 1999 was Sarah Novak (Novak). Petitioner and Novak became
friends during the course of the summer.

¶9 As a benefit to its seasonal
employees, St. Mary's provided transportation to the airport or train
station for employees returning home by airplane or train at the end of
the season. St. Mary's authorized fellow employees to drive departing
employees to the airport using their own cars or cars owned and provided
by St. Mary's. If the employee's car was used, St. Mary's reimbursed the
driver for gasoline.

¶10 The St. Mary's policy regarding
transportation at the end of the season is set out in "Department Head
Memo", as follows:

Transportation - we will
transport them back to the location where we picked them up.
If they were picked up at the train station, we will drop them off at
the train station. Same with the airport. But if they were picked up
at the train, we will not drop them off at the airport, etc. They can
arrange to have a fellow employee take them to the airport or train
station. If they use the fellow employee's car, we will pay for gas.
They can also arrange to take a company car, but in this case the car
must be picked up and dropped off on the same day, no overnight trips.
Also the only two people who can go are the driver and the person to
be dropped off. The car must be used to drive directly to the train
depot or airport and back, no side trips allowed.

(Ex. 4 at 1; underline in original.)

¶11 The policy is reflected
in two slightly different versions of a "St. Mary Lodge & Resort Departure
Information Sheet," which was evidently prepared for employees. The first
states:

Please notify the office
one week prior to your departure what your travel arrangements will
be for returning home. We will provide transportation to the East Glacier
train station or to the Kalispell airport if we originally picked you
up there. If you have arranged for a fellow employee to take you please
notify Dustin so we do not schedule a Town Run. We will provide a company
vehicle if the employee who is taking you does not have a vehicle, provided
they have a valid driver's license and have reviewed and signed the
appropriate paper work.

(Ex. 4 at 2.) The second reads:

Please notify the office
one week prior to your departure as to your travel arrangements. We
will provide transportation to the East Glacier train station or to
the Kalispell airport if we originally picked you up there. We will
provide a company vehicle. Please arrange for one fellow employee to
drive you.

(Ex. 4 at 3.) There is no evidence
regarding which, if either, of these memos was given to petitioner or
other employees.

¶12 When a departing employee
desired a particular employee to drive her or him to the airport, Rocky
Black (Black), the manager of the St. Mary's Lodge, checked to make sure
the employee had a valid driver's license and, if driving a company car
with a manual transmission, could drive the car. If Black considered the
proposed driver satisfactory, he gave verbal permission to the driver
to take the departing employee to the train station or airport.

¶13 Black permitted friends
and roommates to drive departing employees because they had lived and
worked together during the summer, becoming friends. If a friend or roommate
was not able to drive, Black designated an on-duty employee to drive.
In those cases, the driver received wages while driving. Where a roommate
or friend designated by the departing employee drove, no wages were paid
to the driver.

¶14 Novak was scheduled to
return home to Minnesota by airplane on September 1, 1999. Novak requested
that petitioner drive her to the airport. Black approved the request and
later went over with both Novak and petitioner the procedures for using
a company car to drive to the airport. They agreed to abide by St. Mary's
policies regarding driving. Black would not have approved petitioner driving
had she not agreed to abide by the policy.

¶15 Petitioner testified at
trial that Novak was her roommate and "we were good friends, so I wanted
to take her." She knew she would have to be approved by St. Mary's to
drive a company car. (Kelly Dep. at 19.)

¶16 On September 1, 1999, petitioner,
Novak, and Aaron Capps (Capps), another St. Mary's employee, set out for
the airport in a St. Mary's car, with petitioner driving. Capps was not
approved by St. Mary's to be in the car and his riding along violated
St. Mary's policy. On the way to the airport, Capps took over driving.
Petitioner cannot recall anything from September 1st and guessed
that she became tired and asked Capps to drive.

¶17 On the way to the airport,
while Capps was driving, the car was involved in an accident. Petitioner
suffered a head injury and lost consciousness.

¶18 September 1, 1999, was
petitioner's day off and she was not paid wages during or for the drive.
She testified she did not consider herself working at the time of the
accident. She was not required by St. Mary's to drive Novak to the airport,
although if she were on duty at the time Novak needed a ride and no one
else volunteered, she could have been designated to drive Novak, but in
that case she would have been paid wages during the drive. Petitioner
was not told that driving other employees to the airport was part of her
job.

¶19 Petitioner understood she
was allowed to use the company car to drive Novak to the airport because
she was an employee. (Id. at 22.) She understood the car was
used only for St. Mary's business purposes and knew she had to be approved
by St. Mary's in order to drive. She knew St. Mary's rules and regulations
applied to her use of the car. (Id. at 19.)

¶20 Petitioner agreed that
but for the accident she would have benefitted from being permitted to
drive Novak since they were friends. But for the accident, she would have
been able to say goodbye to her friend at the airport.

¶21 At the time of the accident,
St. Mary's was insured by Hartford.

¶22 Petitioner did not complete
a claim for workers' compensation and no one signed a claim on her behalf.

¶23 However, after Black learned
of the accident, he or someone else at St. Mary's contacted Hartford to
report the accident. St. Mary has a policy of reporting injuries within
twenty-four hours. Black believed petitioner was in the course and scope
of employment at the time of the accident.

¶24 Black was shown a copy
of the First Report form, on which the box labeled "No" is marked in response
to the question, "Was worker injured while in your employ?" Black did
not know why the "No" box was marked . (Exhibit 1.)

¶25 Linda Slavik (Slavik) is
a claims representative for Hartford and is the adjuster in charge for
this case. She testified that the First Report was completed by a telephone
call to the insurer. She also did not know why the "No" box was checked.
In any event, she made her own independent analysis, determined petitioner
was within the course and scope of employment during the accident, and
accepted the case as compensable. She also received First Report forms
for both Novak and Capps. The claims of Novak and Capps were also accepted.
Slavik testified the insurer often accepts claims before actually receiving
a claim form signed by the injured worker.

¶26 Slavik received a phone
call from petitioner's mother shortly after the accident. Mrs. Kelly wanted
her daughter flown home and asked the insurer to cover the cost of a plane
ticket. Hartford paid the airfare. However, a benefits check sent to petitioner
at her home was returned, uncashed.

CONCLUSIONS
OF LAW

¶27 This case presents the
unusual situation of an employee asking the Court to determine that she
was not in the course and scope of her employment at the time of her car
accident and therefore not covered by the Workers' Compensation
Act (WCA). At trial, her counsel also pointed out that petitioner has
never filed a claim and in light of the requirement that she file a written
claim within 12 months, § 39-71-601(1), MCA, her injuries should be deemed
outside the Act. However, section 39-71-601(1), MCA, is a statute of limitations
and an affirmative defense that may be waived by an insurer. In this case
the insurer has accepted liability, and in any event it could waive the
statute either expressly or by not pleading it. See Rule 8(c),
Mont.R.Civ.P.(1) Since the insurer in this
case has accepted liability and, along with the employer, requests that
the Court find that petitioner's injuries are covered under the WCA, the
sole issue presented is whether petitioner was injured in the course and
scope of her employment.

¶28 As a general matter, employees
injured in the course and scope of employment are covered under the WCA.
Section 39-71-407(1), MCA, provides:

Each insurer is liable for
payment of compensation, in the manner and to the extent provided in
this section, to an employee of an employer that it insures who receives
an injury arising out of and in the course of employment
or, in the case of death from the injury, to the employee's beneficiaries,
if any.

(3) An employee who suffers
an injury or dies while traveling is not covered by this chapter unless:

(a)(i) the employer furnishes
the transportation or the employee receives reimbursement from the employer
for costs of travel, gas, oil, or lodging as a part of the employee's
benefits or employment agreement; and

(ii) the travel is necessitated
by and on behalf of the employer as an integral part or condition of
the employment; or

(b) the travel is required
by the employer as part of the employee's job duties. [Emphasis added.]

I consider the course and scope
under both subsections, although satisfaction of one is sufficient to
render petitioner's injuries compensable.

¶29 Subsection (a) has two
prongs. The first is satisfied since the employer furnished the transportation.
The second is also satisfied. The employer, as a benefit to its employees
and part of their compensation, agreed to furnish departing employees
transportation to the airport or train station, making the transportation
an integral part of the employment relationship. Even if the subsection
is read to mean that the travel be an integral part of the particular
employee's job responsibilities, the subsection is satisfied. To fulfill
its obligation to transport departing employees to the airport or train
station, St. Mary's had to use its employees or hire a third party to
provide transportation. Its policy was to use employees; if there were
no volunteers for the job, some employee was assigned the task. Thus,
taking departing employees to the airport was within the scope of petitioner's
and her co-employees' job duties and an integral part of their employment.
Petitioner's injuries are therefore covered under the WCA.

¶30 Subsection (3)(b) applies
where the employer does not furnish or pay for the transportation or,
despite doing so, the travel is not an "integral part or condition of
the employment." Under those circumstances, the travel may still be covered
if it is "required by the employer as part of the employee's job duties."

¶31 Initially it is difficult
for me to imagine when travel would satisfy the language of subsection
(3)(b) yet not satisfy the "integral part or condition of the employment"
language of subsection (3)(a)(ii), thus it is difficult for me to imagine
a situation where the employer provides or pays for transportation which
would not satisfy (3)(a) yet satisfy (3)(b). It may be that the legislature
intended (3)(b) to apply only to situations where the employer neither
furnishes nor pays for the transportation and, though using differently
worded tests concerning the relatedness of the travel to the employment,
intended the tests to be equivalent. Whether it so intended, or whether
it envisioned situations I cannot readily imagine, I can only speculate.
In any event, subsection (3)(b) must be applied as written. Since it is
not limited to situations where the employer does not provide or pay for
transportation, I must consider whether petitioner's travel was required
as a part of her job duties. In making that determination I must construe
and apply the language of subsection (3)(b) without consideration of whether
the standard it enunciates is identical to the "integral part or condition
of the employment" language of subsection (3)(ii).

¶32 In State Compensation
Mut. Ins. Fund v. James, 257 Mont. 348, 352, 849 P.2d 187, 190 (1993),
the Supreme Court construed the "as part of" phrase of subsection (3)(b)
"as equivalent to the phrase 'in the course and scope of' employment from
the previous common law." See also, Heath v. Montana Mun. Ins. Authority,
1998 MT 111, ¶ 13, 959 P.2d 480, 483 (1998). Both James and Heath
indicate that common law cases antedating the passage of section 39-71-407(3),
MCA, should be followed in determining whether the travel is "part of
the employee's job duties."

¶33 In determining whether
an activity falls within the course and scope of employment, four factors
are considered, as follows:

(1) whether the activity
was undertaken at the employer's request;

(2) whether employer, either
directly or indirectly, compelled employee's attendance at the activity,

(3) whether the employer
controlled or participated in the activity; and

(4) whether both employer
and employee mutually benefitted from the activity.

Connery v. Liberty Northwest
Ins. Corp., 280 Mont. 115, 121, 929 P.2d 222, 226; Courser v.
Darby School Dist. No. 1, 214 Mont. 13, 17, 692 P.2d 417, 419 (1984).
"The presence or absence of each factor may or may not be determinative
and the significance of each factor must be considered in the totality
of all attendant circumstances." Courser, supra, 214 Mont. at
17, 692 P.2d at 419.

¶34 Petitioner argues the first
two factors are not met because she volunteered to take Novak to the airport
and was not specifically asked or compelled, directly or indirectly, to
drive Novak to the airport. However, under course and scope precedents,
an activity undertaken for the benefit of the employer, is still within
the course and scope of employment even though not specifically
required by the employer and is voluntarily undertaken by the employee
"off the clock." That is the lesson of Courser v. Darby School Dist.,
supra. In Courser an elementary school teacher was determined
to be within the course and scope of his employment while en route to
attend summer college courses necessary to obtain a master's degree. He
had been encouraged by his supervisors to attend the program so he would
become eligible to apply for an upcoming opening for a school principal.
Prior approval of his course work by school administrators was required
by his contract with the school district, and such approval was actually
given. While completion of the courses also qualified him for a salary
increase, he was on summer vacation and not compensated for time spent
taking the courses.

¶35 Quoting Bump v. Central
School District, 40 A.D. 243, 338 N.Y. Supp.2d 998, 1000 (1973) ,
the Montana Supreme Court held that voluntary attendance at an activity
does not remove the employee from the course and scope of employment "if
such attendance was incidental to the ordinary employment and was undertaken
at the employer's request." Id., 214 Mont. at 17-18, 692 P.2d
at 419. The key to bringing the activity within the course and scope of
employment was "some action on the part of the employer to connect
the trip to employment, some sponsorship, some approval, some employer
action . . . ." Courser, 214 Mont. at 18, 692 P.2d at
420, quoting Johnson Stewart Mining Co. v. Industrial Co., 133
Ariz. 424, 652 P.2d 163,167 (1982) (emphasis added). The Court found it
unnecessary for Courser to be "on duty" or "on the clock" at
the time of injury.

¶36 In the present case, although
St. Mary's did not specifically request or order petitioner to drive Novak
to the airport, its policy encouraged and implicitly requested its employees,
including petitioner, to drive departing friends and roommates to the
airport or train station. Lacking volunteers, St. Mary's could designate
and order any one of its employees to do so, thus the possibility of compulsion
was also present. In driving Novak to the airport, petitioner was discharging
the employer's obligation to Novak to return her to the airport when departing.
Those facts are sufficient under Courser "to connect the trip
to employment" and satisfy the first two of the four "course and scope"
criteria. Courser, 214 Mont. at 18, 692 P.2d at 420.

¶37 The third factor is whether
the employer "controlled or participated in the activity." Courser
explained that actual control is not necessary for compensability.
"The right to control is sufficient." Courser, 214 Mont. at 19,
692 P.2d at 420. "That right may exist if the employee is acting for the
benefit of the employer." Id. In the present case, St. Mary's
exercised the right of control over petitioner's travel. Its rules required
that petitioner be approved to drive Novak to the airport, and in fact
she was approved. Petitioner's actual travel was governed by rules prohibiting
any deviation in travel or carrying of passengers, even fellow employees.
I credit Black's testimony that he reviewed with petitioner the company
rules and regulations regarding use of a company car for the trip. While
petitioner did not recall discussing these matters with Black, she testified
she did not remember anything from the day of the accident. Moreover,
she acknowledged knowing that St. Mary's rules and regulations applied
to the drive. These facts represent sufficient employer control or participation
in the activity. The third factor is satisfied.

¶38 The final factor considers
whether the employer and employee mutually benefitted from the activity.
I have found that they did. In driving Novak to the airport, petitioner
was discharging St. Mary's obligation to Novak to return her to the airport,
thus benefitting St. Mary's. In driving Novak to the airport, petitioner
had the opportunity to spend a few more hours with her friend and see
her off, thus benefitting petitioner.

¶39 An argument might be made
that under subsection (3)(b), travel may be within the course and scope
of employment yet not be "required by the employer." The "required" component,
however, is met in this case since the travel was required of some employee
and once the petitioner volunteered her travel was subject to the employer's
direction and control. I find that subsection (3)(b) is satisfied.

¶40 Since petitioner's travel
meets the criteria of section 39-71-407(3), MCA (1999), her injuries are
covered under the WCA. Accordingly, Hartford properly accepted liability
for her injuries.

JUDGMENT

¶41 1. Petitioner was acting
within the course and scope of her employment at the time of her September
1, 1999 automobile accident.

¶42 2. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.

¶43 3. Any party to this dispute
may have 20 days in which to request a rehearing form these findings of
fact, conclusions of law and judgment.

(c) Affirmative Defenses.
In pleading to a preceding pleading, a party shall set forth affirmatively
accord and satisfaction, arbitration and award, assumption of risk,
contributory negligence, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow servant,
laches, license, payment, release, res judicata, statute of frauds,
statute of limitations, waiver, and any other matter constituting an
avoidance or affirmative defense. When a party has mistakenly designated
a defense as a counterclaim or a counterclaim as a defense, the court
on terms, if justice so requires, shall treat the pleading as if there
had been a proper designation.

While the Workers' Compensation
Court has its own rules of procedure, its rules require a respondent to
set out its contentions in its response, ARM 24.5.302(1)(a), hence the
Court will not consider a statute of limitations defense if not listed
in the contentions.

2. The law
in effect at the time of claimant's injury applies. Buckman v. Montana
Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
At the time of her injury, the 1999 version of the WCA applied.